Friday, January 11, 2013

Due Process and the Fundamental Right to Marry

Guest Blogger

Matt Coles

Many of the Supreme Court’s more recent decisions suggest that the Court has adopted Justice Scalia’s ideas about how it should decide if the due process clause gives special protection to an aspect of freedom not explicitly mentioned in the Constitution.  That idea is that the Court should: 1) describe the potentially protected liberty in as fact-specifically narrow way as is possible; and 2) then decide if the liberty is one that history shows has been traditionally protected by American society.  See Michael H. at 122-124 for a good example of Justice Scalia’s idea.  See, Glucksberg and McDonald v The City of Chicago at for examples of plurality opinions invoking it. 

It is a bit odd that much of the Court relies for its substantive due process analysis on the ideas of one who thinks the entire enterprise is illegitimate “judicial usurpation.” See Justice Scalia’s dissenting opinion in City of Chicago v. Morales, at 85. Putting that aside, while Justice Scalia’s approach got six votes in Glucksberg¸ Chief Justice Rehnquist’s formulation of it there wasn’t as tightly restricted as Justice Scalia probably would have liked.  The Glucksberg majority called for a “careful” description of the claimed right (at 721), not a narrow one (Justice Scalia’s dissent in Morales at 85).  And it described history and a careful description as “primary features” of due process analysis.  It did not quite say that either was essential although it goes on to rule as if “being deeply rooted” in American “history and tradition” is essential (Glucksberg at 720-721 and 723-25).

However, when push has come to constitutional shove, at least two of the Justices who joined the Glucksberg majority made it clear that they don’t think history is everything, or necessarily essential.  Just eleven months after signing on to Glucksberg, Justice Kennedy, joined by Justice O’Connor (who was the sixth vote in Glucksberg) wrote that “…history and tradition are the starting point, but not in all cases the ending point of the substantive due process inquiry.”  County of Sacramento v. Lewis at 857-858.  Justice Kennedy seemed to take this farther, though in a pretty unclear doctrinal context, in Lawrence at 571-2 (“In all events, we think that our laws and traditions of the past half century are of most relevance here.”). 

But Justices who champion less restrictive ideas of how to identify an inexplicit liberty that is nonetheless specially protected by due process are often not entirely convincing.  Despite Justice Stevens’ arguments about the indeterminacy of history (McDonald v. City of Chicago), a search for traditions about what Americans long thought beyond the reach of government feels more manageable and less subjective than an inquiry into what is “implicit in the concept of ordered liberty.”  More significantly, the champions of a more expansive view of implicit rights typically don’t give very satisfactory explanations of why the sources they suggest we look to ought to be part of a method for identifying implicit rights.  See Justice Stevens dissent in McDonald at 3096 S.Ct (“…historical and empirical data of various kinds…” including other parts of the constitutional text, “judicial precedents, English common law, legislative and social facts, scientific and professional developments, practices of other civilized societies and above all else, ‘the traditions and conscience of our people’ (quoting Palko quoting Snyder); see also Justice Souter’s concurrence in Glucksberg.

Part of the problem lies in the murky justifications for the entire enterprise.  History does make sense as a central inquiry if you are trying to identify ideas—like the paramount right of a parent to raise a child without state interference except in dire situations--so basic they hardly needed to be mentioned in either the federal bill of rights or state constitutions (a quick aside: even if a right were thought to be so securely protected by the lack of federal power as to not need mentioning, that wouldn’t explain leaving it out of a state charter; obviousness might).  You might ask that sort of question if you were trying to untangle the meaning of “privileges or immunities” or if you were exploring how that central aspect of due process, the rule of law, applies to legislative proceedings (fun questions for another time).  But how does a search for something so basic it did need mentioning lead you to “legislative facts” or “scientific developments”?  If “implicit in ordered liberty” means something other than “understood to be off the table,” what does it mean and how does that lead to “legislative facts” and so on?

I’m not saying that there aren’t satisfactory answers to those two questions.  I’m just saying that the Justices who support expansive implicit rights haven’t really given them yet. 

Nevertheless, there is at least one way in which developments in the law may make sense as part of an attempt to use history and tradition to identify inexplicit liberties protected by the due process clause, suggested by Judge Vaughn Walker’s District Court opinion in Perry v. Schwarzenegger.  Walker’s idea appears as he tries to unsnarl the central dispute over the established constitutional “right to marry,” one of the implicit rights specially protected by due process.  The plaintiffs said they were same-sex couples seeking to exercise the existing fundamental right to marry; the defenders of California’s Prop. 8 said marriage had always been reserved for a man and a woman, and the plaintiffs wanted to create a new institution of “same-sex marriage.” Or as the Judge put it,

“The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or because they are couples of the same-sex, whether they seek recognition of a new right.”

The judge recognized that if what plaintiffs sought was recognition of a “new” specially protected due process right, they were likely cooked by history under Glucksberg. So he turned to the question of whether the fact that only men and women had traditionally married was part of the right itself, or a reflection of how it was exercised.  History alone was not much help here, since while it is true that marriage for same-sex couples was unknown until recently, it is also true that it wasn’t denied until recently either.  Prior to around the 1970s, no state law defined marriage as between a man and a woman.  As state laws about marriage showed, the laws assumed those marrying would be “bride and groom” “husband and wife.”  But assuming it and defining it aren’t the same thing.  The idea of same-gender marriage had not occurred.

As Judge Walker explains, until quite recently, marriage was a deeply gendered institution, with specific, distinct legal roles for men and women. But in the second half of the 20th Century, gender slowly but surely disappeared from the legal institution, which became a relationship of legal equals.  But, says the Judge, the right did not become different simply because marriage “became compatible with gender equality.”  Therefore, he wrote, the insistence that the parties to a marriage be opposite sex was an “artifact of a time when the genders were seen as having distinct roles in marriage.”

Or, to put it in constitutional context, the gender requirement is not a part of the right protected by the due process clause.  That’s right, it seems to me, if we can all agree that the degendered marriages the states afford people today are the marriages to which they have a protected constitutional right; if in degendering the marriage, the states did not violate the due process clause.  Had Justice Scalia commanded a majority in Michael H., the proponents of Prop. 8 might have been tempted to attack laws permitting same-sex couples to marry as a violation of due process (the standing questions would have been fun, especially if the defense fell to Charles Cooper, who famously could not say how the marriages of same-sex couples hurt the marriages of opposite sex couples).  But even those who attacked the Massachusetts Supreme Court’s Goodridge decision ordering that same-sex couples be allowed to marry didn’t try to go that far.  The degendering of marriage has not been attacked as a violation of the United States constitution because we understand that the marriages the states sanction today are marriage and give what is required by the Constitution (whatever that is, about which the courts have not said much).  So Judge Walker is right; gender is not part of the fundamental right to marry, and the plaintiffs in Perry sought to exercise the existing implicit right, not a new one.

Judge Walker’s opinion suggests that contemporary understanding of the rights we have can help us understand the essential contours of a protected implicit right.  Perhaps more precisely, the law about a protected right today can help us discern what we understand a venerable idea to mean today.  If we don’t think stripping gender out of marriage violated the right to marry established in history, we don’t understand gender to be an essential part of the right.  At least not today we don’t.

I suggested elsewhere an entirely different way to get to much the same result.  “Lawrence v. Texas and the Refinement of Substantive Due Process,” Stanford Law and Policy Review, vol. 16, p.49. That idea was that an equality principle inherent in the rule of law, and thus the due process clause, allowed history to be used to discover the contours of a protected liberty, but not who got to exercise it.  I think Judge Walker’s idea, while it won’t introduce contemporary law into every due process analysis, may give a more satisfactory explanation of, for example, the Court’s cases recognizing the right to marry as fundamental for those who have been divorced, and for the relationship of children to fathers who were not married to their mothers. 

In any case, his instinct that we all think the legally degendered marriage we have is the marriage protected by the due process clause makes a compelling case that what same-sex couples seek is access to an established right, not a new one. 

Matt Coles is Director of the American Civil Liberties Union's Lesbian Gay Bisexual Transgender & AIDS Project. You can reach him by e-mail at mcoles at

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